LONDON NUCLEAR WARFARE TRIBUNAL Evidence,
Commentary, and Judgment

Often it is assumed, wrongly, that international agreements in treaty
form are the only valid source of international legal obligations. In
some respects, written agreements, duly ratified, are preferable
sources of guidance as to the requirements of international law.
Written formulations can be more explicit and elaborate with respect to
a given pattern of conduct. Furthermore, as far as governments are
concerned, there is a tendency to accord greater respect to those legal
obligations to which consent in explicit and constitutional form has
been given, especially if the negotiation and ratification processes
are recent, most particularly within the life span of the governmental
leadership currently in power.

There are also limitations to the view that treaty rules are the only
genuine source of international law, or even the more moderate view,
that these formulations of law are necessarily the best source. Some
general norms have not been reduced to treaty form. In other instances,
some states are not bound by treaties, having withheld their consent.
In still other instances, the content of the treaty rules is vague or
subject to contradictory formulations, especially so in relation to the
early efforts to codify war and peace, quite dramatically superseded by
modern methods and styles of warfare, as well as by new military
technologies and weapons systems. This Tribunal has applied
international law by taking full account of both customary
and treaty rules of international law.

There is an obvious problem of application with respect to nuclear
weapons. The nuclear weapons states have so far refrained from entering
into any serious negotiations towards a treaty, or even a declaration,
acknowledging the unlawfulness of threats or uses of nuclear weapons.
Such a deficiency is obviously not an oversight. Hence, to derive
applicable rules of international law that add up to an unconditional
prohibition of the use of this weaponry is bound to collide with the
official security policies of major states, and to challenge the
legitimacy of weapons capabilities and bureaucracies that command
control over vast allocations of resources.

In the summary of Evidence before the Tribunal (see Chapter 2 - the
applicable Treaty rules are considered in detail, and are anticipated
here). There are, however, certain broad efforts to reduce to treaty
form agreed standards of behaviour that seem crucial here, especially
because their generality suggests a relevance to any assessment of the
lawful status of nuclear weapons and tactics. The important general
treaties in this area were formulated at the Hague in 1899 and 1907
in a series of comprehensive conventions that summarized the pre-World
War I levels of agreement as they existed between the governments
playing a leading role in international life. The goal was not to
eliminate war, but to regulate its conduct in accordance with the
customary principles briefly set forth in the preceding paragraph.
Especially important was the broad imperative embodied as a common
article in the various Hague Conventions of 1899. Article 22 in the
Annex to the Hague Convention IV (Regulations Respecting the Laws and
Customs of War on Land)
states:

"The right of belligerents to adopt means of injuring the enemy is
not unlimited."

The apocalyptic implications of a major reliance on nuclear weapons
gives this provision an obvious orienting relevance.

Also critical was the celebrated "de Martens clause"
(named after the Belgian jurist Feodor de Martens) inserted in the 1907
Hague Conventions+
:

"Until a more complete code of the laws of war has been issued,
the high contracting Parties deem it expedient to declare that, in
cases not included in the Regulations adopted by them, the inhabitants
and belligerents remain under the protection and the rule of the
principles of the law of nations, as they result from the usages
established among civilized people, from the laws of humanity, and the
dictates of the public conscience."

This resolve in international treaty law to base permissible
action expressly on normative traditions and upon conscience is a
significant basis of encouragement for the inquiry of this Tribunal.
The "de Martens Clause"
definitely refutes the ultra-statist
view that everything is permitted if it has not been expressly
renounced by a formal manifestation of governmental authority.

International treaty law has successfully achieved a very widely
endorsed prohibition of poison as a weapon and tactic of war. To date
the most important treaty instrument, adopted in response to the menace
of poison gas revealed in the trenches of World War I, is the 1925
Geneva Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous and other Gases, and of Biological methods of Warfare.
At present a variety of negotiations and proposals seek to extend in
more detailed form this prohibition on toxic weaponry. Unlike in the
case of biological weapons, the current treaty law prohibits threat and
use, but not development and possession. Hence, a deterrent approach to
chemical weapons
is not per se prohibited under contemporary international law.

Another significant line of effort in treaty law concerns the
discretion to initiate war via acts of aggression. In the 1928 Pact of
Paris,
war is outlawed as an instrument of national policy, and legitimate
force confined to circumstances of self-defence.
This treaty norm provided a major basis for the war crimes prosecution
at Nuremberg and Tokyo after World War II, giving rise to the category
of offence known as "Crimes against Peace"
.
The United Nations Charter,
a multilateral treaty, carries forward in Articles 1(4), 33, and 51 the
basic notion that there is no legal pretext for recourse to force in
international relations except in self-defence against a prior armed
attack. There is some controversy among international law specialists
as to whether patterns of state practice have so consistently ignored
this constraining legal framework as to suspend, or to draw into
question, its continuing validity. At stake in the nuclear weapons
setting is the critical issue as to whether the design and development
of first-strike
weaponry and supporting doctrine amounts to a per se act of
aggression, as well as rendering officials liable for crimes against
the peace. At Nuremberg
it was definitely decided that planning for aggressive war
is itself a crime even if the aggressive policy is never consummated.
Does this prohibition pertain to those allegations that certain classes
of nuclear weapons systems have first-strike properties and roles?

Another major treaty instrument was the Genocide Convention of 1948
that established the criminality of any course of deliberate state
policy that intends to destroy, in whole or part, national, ethnic,
religious, or racial groups. Nuclear weapons are aptly described as
weapons of mass destruction, and their use in any sustained manner,
seems genocidal in impact, as well as ecocidal. Indeed, the grim
magnitude of such destruction suggests that beyond genocide lies the
result of omnicide. Given the inability to apprehend after the event,
this Tribunal seeks to examine whether the genocidal propensities of
nuclear weapons, and doctrines governing their use, do not constitute
sufficient ground to find governments and their leaders guilty of
intentional violations of the Genocide Convention.

Ever since the nineteenth century there has been an effort
complementary to that of the Law of the Hague
dealing with weapons and tactics to codify international humanitarian
law applicable during wartime, sometimes known as the Law of Geneva,
because so many of the main treaty instruments were negotiated and
signed at Geneva. The main elements of the Law of Geneva are the four
Geneva Conventions of 1949
- for the protection of land forces,
of sea forces,
of prisoners of war,
and of civilians.
The attempt of these agreements is to give concrete application to the
Principle of Humanity,
by imposing obligations on belligerent states to respect the sanctity
of such things as hospitals, cultural monuments etc., and to avoid any
military action against the sick and wounded, or against those of the
enemy who have laid down their arms and become prisoners of war.

These treaty rules suggest levels of respect for the limits of warfare
that seem utterly inconsistent with any use of nuclear weapons. Again
an issue for this Tribunal is whether this body of law can be
considered superseded by contrary patterns of state practice. Efforts
to extend this humanitarian approach to the explicit circumstances of
nuclear weaponry have not been successful as yet. Both the United States
and Britain
made it clear that their participation in the negotiation of the Geneva
Protocols I and II in 1977,
to modernize the 1949 Conventions, was taking place on the assumption
that nuclear weapons
, and were not to be considered subject to the treaty norms, even in
relation to Article 35 which explicitly deals with new weapons and
methods of warfare. Is such an exclusion effective? This question is
important for this Tribunal to address in its Judgment.

A final source of treaty guidance for this Tribunal arises from the
legal duty imposed on the governments of nuclear states by such arms
control agreements
as the Limited Test Ban Treaty of 1963
and the Non-Proliferation Treaty of 1968,
to negotiate in good faith an end to the nuclear arms race and to
establish by stages or any reasonable process, secure arrangements for
general and complete disarmament.
This Tribunal needs to determine whether the failure to accept
proposals for a comprehensive test ban and the continued preparation
for nuclear warfare, including the development of new weapons systems
with first-strike propensities, amount to violations of international
treaty obligations.

Note

+ This is from the preamble to the 1907 Hague
Convention IV Respecting the Laws and Customs of War on Land.